2002 (5) TMI 93 - AT - Central Excise

Tribunal partially sets aside duty order on manufacturing company & directors due to lack of evidence

SHRAM SHAKTI POLYTEX PVT. LTD. Versus COMMISSIONER OF CUSTOMS, JAIPUR

The Tribunal partially set aside the Commissioner's order confirming duty with penalties on the appellants, a manufacturing company and its directors, for ... Demand - Clandestine removal of goods Issues:1. Confirmation of duty with penalties on appellants.2. Allegations of clandestine removal of goods and evasion of duty.3. Reliability of evidence presented by both parties.4. Assessment of wastage percentage and clearance of goods.5. Correlation of entries in statutory records and allegations of clandestine removal.6. Defective bags treated as wastage and clearance of goods.7. Shortage of raw material and availed credit amount.Analysis:1. The three appeals were filed against the order confirming duty with penalties on the appellants, a company engaged in manufacturing PP/HDPE tapes, fabrics, and sacks, along with its directors. The Commissioner passed the order based on irregularities found in statutory records during a check by the Anti Evasion wing of Central Excise.2. The appellants contested the show cause notice, denying allegations of duty evasion through clandestine removal of goods and illegal credit on raw materials. The Commissioner upheld the duty demand and imposed penalties, leading to the appeals. The appellants argued lack of reliable evidence to prove the allegations.3. The Department alleged that the appellants cleared bags without duty payment, based on a 5% wastage discrepancy. However, the appellants provided evidence showing industry norms of 10% wastage. Lack of buyer statements or conclusive evidence led to doubts regarding clandestine removal of goods.4. Another allegation focused on discrepancies in the inward register, suggesting clandestine removal. The appellants presented accounts and certificates to support material receipts for job work, highlighting the lack of concrete evidence to prove clandestine removal.5. The Tribunal emphasized the need for tangible evidence to establish clandestine removal, citing legal precedents. In this case, the lack of reliable evidence or buyer statements undermined the allegations against the appellants.6. Regarding defective bags treated as wastage, the appellants' explanation stood unchallenged, with no evidence contradicting their claim. Lack of proof regarding clearance of defective bags clandestinely weakened this charge.7. The shortage of raw material and availed credit amount were not contested by the appellants. The confirmation of the demand was upheld, but the amount was reduced based on the debited credit. The impugned order was set aside partially against the company and entirely against other appellants.In conclusion, the Tribunal set aside the Commissioner's order partially, upholding the demand for the balance amount due to wrong credit availment. The appeals were disposed of accordingly, providing consequential relief as per law.